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2010-31 CONTRACT AGREEMENT THIS AGREEMENT, made and entered into ibis l0` day of August 2010, A.D., by and between the City of Clermont 685 West Montrose Street, Clermont, Florida (hereinafter referred to as "OWNER "), and Young's Communication Company. (hereinafter referred to as "CONTRACTOR "). WITNESSE;fH: That the parties hereto, for the consideration t hereinafter set forth, mutually agree as follows: • — ARTICLE I - SCOPE OF WORK • The CONTRACTOR 'shall furnish all labor, materials, equipment, machinery, tools,' apparatus and transportation and perform all of the work described in the specifications entitled: . RFB NO. 10 -009, HOOKS STREET AND EXCALIBER ROAD RECLAIMED - WATER MAIN EXTENSION as prepared by Owner and its agents shall do everything required by this Contract and the other Contract Documents contained in the specifications, which are a part of these Documents. ARTTCLE 11- THE CONTRACT SUM The OWNER shall pay to the CONTRACTOR, for the faithful performance of the Contract,. in lawful tender of the United States, and subject to addition and deductions as provided in the Contract Documents, the Compensation Schedule, attached hereto and incorporated herein as Exhibit "A" and the Unit Price Schedule, attached hereto and incorporated herein as Exhibit "B." The total contract sum shall not exceed Forty-Eight Thousand, Five Hundred and 55 /100 DOLLARS ($48,500.00) • ARTICLE 111 - COMMENCEMENT AND COMPLETION OF WORK ' 1.). The CONTRACTOR shall commence work within 10 calendar days after receipt of (i) Notice to Proceed, and (ii) receipt of three (3) sets of conformed plans, and . (iii) receipt of all survey data as required to perform construction layout, and (iv) receipt of all permits required to perform the work, and the CONTRACTOR will substantially complete the same within 60 days, unless the period for completion is extended otherwise by the CONTRACT DOCUMENTS. Substantial Completion as provided herein shall be the day the project or designated portion thereof is certified by the Architect /Engineer when construction is sufficiently complete, in accordance with the Contract Documents, so the OWNER can occupy or utilize the work or designated portion thereof for the use for which it is intended. • • • • 2.) The CONTRACTOR shall prosecute the work with faithfulness and diligence. 3.) The CONTRACTOR further declares he has examined the site of the work and that from personal knowledge and experience or that he has made sufficient investigations to fully satisfy himself that such site is correct and suitable for the work and he assumes full responsibility therefore. The provisions of this Contract shall control any inconsistent provisions contained in the specifications. All Drawings and Specifications have been read and carefully considered by the CONTRACTOR, who understands the same and agrees to their sufficiency for the work to be done. It is expressly agreed that under no circumstances, conditions or • situations shall this Contract be more strongly construed against the OWNER than against the CONTRACTOR and his Surety. • Any ambiguity or uncertainty in the Plans, Drawings or Specifications shall be interpreted and construed by the Project Architect /Engineer, and his decision shall be final and binding upon all parties, provided the OWNER agrees. It is distinctly understood and agreed that the passing, approval and /or acceptance of any part of the work or material by the OWNER or by any agent or representative as in compliance with the terms of this Contract and /or of the Drawings. Plans and Specifications covering said work shall not operate as a waiver by the OWNER of strict compliance with the terms of this Contract and /or the Drawings and Specifications covering said work; and the OWNER may require the CONTRACTOR and /or his Surety to repair, replace, restore and /or make to comply strictly and:in all things with this Contract and the Drawings and Specifications any and all of said work and /or materials which within a period of one year from and after the date of the passing, approval, and or acceptance of any such work or material, are found to be defective or to fail and in any way to comply with this Contract or with the Drawings and Specifications. This provision shall not apply to materials or equipment normally expected to deteriorate or wear out and become subject to normal repair and replacement before their condition is discovered. The CONTRACTOR shall not be required to do normal maintenance work under the guarantee provisions. Failure on the part of the CONTRACTOR and /or his Surety, immediately after Notice to either, to repair or replace any such defective materials and workmanship shall entitle the OWNER, if it sees fit, to replace or repair the same and recover the reasonable cost of such replacement and /or repair from the CONTRACTOR and /or his Surety, who shall in any event be jointly and severally liable to the OWNER for all damages, loss and expense caused to the OWNER by reason of the CONTRACTOR'S breach of this Contract and /or his failure to comply strictly and in all things with this Contract and /or his failure to comply strictly and in all things with this Contract and with the Drawings and Specifications. 4.) As -built drawings, warranties acceptable to OWNER must be submitted to the OWNER before final payment will be made to the CONTRACTOR. • • ARTICLE IV - LIQUIDATED DAMAGES 1.) It is mutually agreed that time is of the essence in regard to this Contract. Therefore, notwithstanding any other provision contained in the Contract Documents, should the CONTRACTOR fail to complete the work within the specified time as set by the Notice to Proceed, or any authorized extension thereof, CONTRACTOR shall pay to OWNER the sum of Two Hundred Fifty Dollars ($250.00) per calendar day as fixed, agreed and liquidated damages for each calendar day elapsing beyond the specified time date; which sum shall represent the damages sustained by the OWNER, and shall be considered not as a penalty, but in liquidation of damages sustained. Contractor shall pay the Liquidated damages amount contained herein to Owner within fifteen (15) days of receipt of Owner's written demand for such payment. • 2.) For the purposes of this Article, the day of final acceptance of the work shall be considered a day of delay, and the scheduled day of completion of the work shall • be considered a day schedule for protection. ARTICLE V — PARTIAL AND FINAL PAYMENTS In accordance with the provisions fully set forth in the General Conditions, and subject to additions and deductions as provided, the •OWNER shall pay the CONTRACTOR as • follows: • 1.) CONTRACTOR shall submit a progress payment request by the third (3rd) day of each calendar month for work performed during the preceding calendar month. Upon CONTRACTOR's signature accepting the PARTIAL PAYMENT AUTHORIZATION, the Owner shall make a partial payment to the Contractor, • within thirty (30) calendar days, on the basis of a duly certified and approved estimate by the OWNER and the Engineer, for work performed during the preceding calendar month under the Contract. To insure proper performance of the Contract, the OWNER shall retain ten percent (10 %) of the amount of each estimate until final completion and acceptance of all work covered by the Contract. 2.) Upon submission by the CONTRACTOR of evidence satisfactory to the OWNER that all payrolls, material bills and other costs incurred by the CONTRACTOR in connection with the construction of the work have been paid in full, and also, after all guarantees that may be required in the Specifications have been furnished and are found acceptable by the OWNER, final payment on account of this Agreement shall be made within thirty (30) calendar days after completion of all work by the CONTRACTOR covered by this Agreement and acceptance of such work by the OWNER. ARTICLE VI - ADDITIONAL BONDS • It is further mutually agreed between the parties hereto that if, at any time after the execution of this Agreement and the Surety Bonds hereto attached for its faithful performance and payment of labor and materials. the OWNER shall deem the Surety or Sureties upon such bonds to be unsatisfactory, or if, for any reason, such bonds cease to be adequate to cover the performance and payments of the work, the CONTRACTOR - shall, at his expense, and within seven (7) days after receipt of Notice from the OWNER to do so, furnish additional bonds, in such form and amounts, and with such Sureties as shall be satisfactory to the OWNER. In such event, no further payment to the CONTRACTOR shall be deemed due under this Agreement until such new or additional security for the faithful performance and for payment of labor and materials of the work shall be furnished in manner and form satisfactory to the OWNER. ARTICLE VII — DISPUTE RESOLUTION - MEDIATION 1.) Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party. 2.) The Owner and Contractor shall endeavor to resolve claims, disputes and other matters in question between them by mediation. 3.) The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. ARTICLE VIII — INSURANCE AND INDEMNIFICA'T'ION RIDER 1.) Worker's Compensation Insurance - The Contractor shall take out and maintain during the life of this Agreement Worker's Compensation Insurance for all his • employees connected with the work of this Project and, in case any work is sublet, the Contractor shall require the subcontractor similarly to provide Worker's Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. Such insurance shall comply with the Florida Worker's Compensation Law. In case any class of employees engaged in hazardous work under this contract at the site of the Project is not protected under the Worker's • Compensation statute, the Contractor shall provide adequate insurance, satisfactory to the Owner, for the protection of employees not otherwise protected. 2.) Contractor's Public Liability and Property Damage Insurance - The Contactor shall take out and maintain during the life of this Agreement Comprehensive General Liability and Comprehensive Automobile Liability Insurance as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damages which may arise from operating under this Agreement whether such operations are by itself or by anyone directly or indirectly employed by it and the amount of such insurance shall be minimum limits as follows: (a) Contractor's Comprehensive General, $1,000.000 Each ($2,000,000 aggregate) Liability Coverages, Bodily Injury Occurrence, & Property Damage Combined Single Limit (b) Automobile Liability Coverages, $1,000,000 Each Bodily Injury & Property Damage Occurrence, Combined Single Limit (c) Excess Liability,.UmbrellaForm $2,000,000 Each Occurrence, Combined Single Limit Insurance clause for both BODILY INJURY AND PROPERTY DAMAGE shall be amended to provide coverage on an occurrence basis. 3.) Subcontractor's Public Liability and Property Damage Insurance - The Contractor shall require each of his subcontractors to procure and maintain during the life of this subcontract, insurance of the type specified above or insure the activities of his subcontractors in his policy, as specified above. 4.) Owner's and Constractor's Protective Liability Insurance - The Owner shall procure and furnish an Owner's and Constractor's Protective Liability Insurance Policy with the following minimum limits: (a) Bodily Injury Liability & $I,000,000 Each ($2,000,000 aggregate) Property Damage Liability Occurrence Combined Single Limit 5.) "XCU" (Explosion. Collapse. Underground Damage) - The Contractor's Liability Policy shall provide "XCU" coverage for those classifications in which they are excluded. 6.) Broad Form Property Damage Coverage. Products & Completed Operations Coverages - The Constractor's Liability Policy shall include Broad Form Property Damage Coverage, Products and Completed Operations Coverages. . 7.) Contractual Liability Work Contracts - The Constractor's Liability Policy shall include Contractual Liability Coverage designed to protect the Contractor for contractual liabilities assumed by the Contractor in the performance of this Agreement. $.) Indemnification Rider (a) To cover to the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and its agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or • death, or to injury to or destruction of tangible property (other than the Work itself) , and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right to obligation of indemnity which' would otherwise exist as to any party or person described in this Article. • (b) In any and all claims against the Owner or any of its agents or employees by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligations under this Paragraph shall not he limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or • any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. (c) The Contractor hereby acknowledges receipt of ten dollars and other good and valuable consideration from the Owner for the indemnification provided herein. 9.) Builder's Risk Coverage - The Contractor shall take out and maintain during the life of this Agreement a . "Builder's Risk Policy" completed value form, issued to provide coverages on an "all risk" basis including theft. This coverage shall not he lapsed or canceled because of partial occupancy by the Owner prior to final acceptance of the Project. The Owner may elect to take out and maintain this insurance coverage. Should the Owner purchase said insurance, the insurance policy shall have a deductible for each occurrence of $5,000.00. "fhe Contractor shall be responsible for losses up to the amount of the deductible. ARTICLE IX - NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be • deemed given when received by the party to whom it is intended. CONTRACTOR: Young's Communications Co, Inc. Attn: Steve Young, President 424 West Drive Melbourne, FL 32904 OWNER: City of Clermont • • Attn: Tamara Richardson, City Engineer 685 W. Montrose Street Clermont, FL 34711 ARTICLE X — MISCELLANEOUS 1) Attorneys' Fees. In the event a suit or action is instituted to enforce or interpret any provision ol'this agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys' fees at trial or on any appeal, in addition to all other sums provided by law. 2) Waiver. The waiver by city of breach of any provision of this agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this agreement. 3) Sevcrability. If any provision of this agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the agreement valid and enforceable under applicable law, the remainder of this agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this agreement shall be valid and enforceable to the fullest extent permitted by applicable law. • 4) Amendment. Except for as otherwise provided herein, this agreement may not be modified or amended except :by an agreement in writing signed by both parties. 5) Entire Agreement. This agreement including the documents incorporated by reference contains the entire understanding ol' the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by contractor. 6) Assignment. This agreement is personal to the parties hereto and may not be assigned by contractor, in whole or in part, without the prior written consent of city. 7) Venue. The parties agree .that the sole and exclusive venue for any cause of action arising out of this agreement shall be Lake County, Florida. 8) Applicable Law. This agreement and any amendments hereto are executed and delivered in the State of' Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. 9) Records. Contractor expressly understands and acknowledges that any and all documents related to the seryices provided herein, may be considered records that are subject to examination and production in accordance with Florida's Public Records Law. Contractor expressly agrees that it will comply with all requirements related to said law and that it will hold city harmless for any such disclosure related to Florida's Public Records Law. • ARTICLE XI - CONTRACT DOCUMENTS • The Contract Documents, as stated in the Instructions to Bidders and herein made a part, are as fully a part of this Contract as if herein repeated. Document Precedence: • I) Contract Agreement 2) Technical Plan and Specifications 3) All documents contained in RFB No.: 10 -009, Hooks Street and Excalibur Road Reclaimed Water Main Extension and CONTRACTOR's response thereto. 4) General Requirements 4) Instructions to Bidders 6) Drawings 7) Payment and Performance Bonds 8) Proposal Guaranty [signatures on next page] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this f� day of A /,ia?C r 7 1 - . 2010. City of Clermo • Harold S. Turville. Mayor. - Attest: 0 Tracy Ackro, d, City Clerk 4 • Steve Young. !residen 424 West Drive / Melbourne, Florida 32904 (?ja=#9 - 1884 A . 1 f a corporation, affix corporate seal and have corporate secretary attest. Attest: rAki °L LI cnivvI, Corporate Secre t eloct: c_ Yeur� (Name Printed or Typ )